Madhya Pradesh High Court
Kanchan Rai vs The State Of Madhya Pradesh on 8 February, 2018
Author: R. S. Jha
Bench: Nandita Dubey, R. S. Jha
1 W.P No.12561/2017 &
Bunch
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT PETITION NO. 12561/2017
PETITIONER : SUKH SAGAR MEDICAL COLLEGE
AND HOSPITAL, JABALPUR
Vs.
RESPONDENTS : MEDICAL COUNCIL OF INDIA
AND OTHERS.
WRIT PETITION NO.13113/2017
PETITIONER : SHIVANI SAHU
Vs.
RESPONDENTS : STATE OF M.P.
AND OTHERS.
WRIT PETITION NO.13171/2017
PETITIONER : KANCHAN RAI
Vs.
RESPONDENT : STATE OF M.P.
AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha,
Hon'ble Smt. Justice Nandita Dubey.
For the petitioners : Shri Rajendra Tiwari, learned Senior
Counsel with Shri Nityanand Mishra
and Shri Akash Choudhary, Shri
Sankalp Kochar and Shri Rohan
Harnae, Advocates.
For respondent/State : Shri Deepak Awasthi, Dy. Advocate
General.
For respondent MCI : Smt. Indira Nair, learned Senior
Counsel with Shri Anshuman Swamy,
Advocate.
For respondent no.3 : Shri Sanjayram Tamrakar and Shri
Vinod Mishra, Advocates.
2 W.P No.12561/2017 &
Bunch
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Whether approved for reporting:
Law laid down :
Significant paragraph numbers :
ORDER
(08/02/2018) Per R. S. Jha, J.
As all these petitions involve a common question of law, they are heard and decided concomitantly by a common order.
2. In all the three petitions the petitioners have challenged communication dated 9.6.2017 issued by the Medical Council of India, whereby it has directed the college concerned i.e. the Sukh Sagar Medical College and Hospital, Jabalpur, to discharge the two private petitioners, namely; Shivani Sahu and Kanchan Rai, who have been granted admission in the unreserved category.
3. The brief facts, leading to the filing of the present petitions, are that the two private petitioners, namely; Shivani Sahu and Kanchan Rai, appeared in the NEET Examination 2016 and obtained 168 and 165 marks respectively out of the total 720 marks i.e. 57.5 percentile and 56.6 percentile. While petitioner Shivani 3 W.P No.12561/2017 & Bunch Sahu appeared as a physically handicapped OBC candidate, petitioner Kanchan Rai appeared as an OBC candidate.
4. It is stated in the petition that while both the private petitioners were registered in the State of M.P. for the purpose of counselling, only petitioner Kanchan Rai was called for centralized counselling at the State Level and was allotted a BDS seat in Bhabha College of Dental Science, Bhopal, in the third round of counselling. However, admittedly she has not got herself admitted or availed of the allotment of the BDS seat made to her and has thereby abandoned the aforesaid allotment in terms of the rules governing admission.
5. According to the separate affidavit filed by the Sukh Sagar Medical College and Hospital, Jabalpur, the private petitioners alongwith 10 other students had approached the College directly on 30.9.2016 and were granted provisional admission by that College on its own and at its own level without their participation in the centralized counselling.
6. According to the facts brought on record by the College as well as the State, against the 127 MBBS seats available in the Sukh Sagar Medical College and Hospital, 4 W.P No.12561/2017 & Bunch 126 candidates were allotted the petitioner College for admission through centralized counselling by the State authorities, out of which one student, namely; Satyam Rai has not taken admission and, therefore, out of the total 127 seats, only 125 seats have been filled up through centralized counselling in the petitioner/College. According to the College, as two seats remained vacant in the College under the unreserved category, they have permitted and confirmed the provisional admission granted by them to the two private petitioners under the OBC category.
7. From the facts on record it is evident that when the list of the students that have been given admission by the College was sent by the College to the Medical Council of India, the MCI found that the name of the two private petitioners, namely; Shivani Sahu and Kanchan Rai, were not mentioned and stated in the list of approved and admitted candidates through centralized counselling submitted by the DME and, therefore, notices were issued by the MCI to the college concerned to explain as to how the two private petitioners had been granted admission by the college. As no reasonable explanation was forthcoming from the college, the impugned communication has been issued by the MCI 5 W.P No.12561/2017 & Bunch directing the college to immediately discharge the two private petitioners, being aggrieved by which the petitioners have filed the present petitions.
8. It is contended by the learned counsel for the petitioners that the two private petitioners have been granted admission by the college on its own as the authorities conducting centralized counselling failed to provide the necessary 127 students for being admitted in the college. It is stated that as two seats remained vacant, therefore, the College has granted admission to the two private petitioners with a view to ensure that meritorious candidates do not lose their right to obtain admission.
9. Though several issues and arguments have been raised before this Court to justify the admissions granted to the private petitioners and regarding the validity of the admissions made, however, we do not think it necessary to go into each one of the arguments raised by the parties in view of the following admitted and undisputed facts:-
i) That the two private petitioners have not been allotted the petitioner/college namely; Sukh Sagar Medical College and Hospital, Jabalpur by the 6 W.P No.12561/2017 & Bunch centralized counselling conducted at the State level.
ii). That the petitioner Shivani Sahu was never called for the centralized State level counselling.
iii). That the admissions have been granted to the two private petitioners by the petitioner/college at its own level.
iv). That there is no provision in the Act, the Rules or the Regulations governing admissions which permit the college to conduct the counselling at its own level or to grant admission on its own in the MBBS course.
10. As the aforesaid aspects and the provisions of law are admitted and are not disputed, this Court is not required to go into each and every issue raised by the petitioners as apparently and admittedly the admission granted to the two private petitioners is dehores the provisions of the admission Rules, which specifically provide that admissions to all MBBS seats in Private Medical Colleges in the State shall be made on the basis of centralized counselling conducted at the State level, against the decision of the Supreme Court rendered in the case of Modern Dental College and Research 7 W.P No.12561/2017 & Bunch Centre and others vs. State of Mahdya Pradesh and others, (2016) 7 SCC 353, wherein the Supreme Court while upholding the validity of the provisions of the M.P. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, and the MBBS Admission Rules, 2008 framed thereunder as well as the Madhya Pradesh Private Medical and Dental Post Graduate Course Entrance Examination Rules, 2009 has held that all admissions in Government and private medical colleges have to be made only through a common entrance test, which has to be conducted by the State and against the judgment of the Supreme Court rendered in the case of State of Madhya Pradesh vs. Jainarayan Chouksey and others, (2016) 9 SCC 412, wherein the Supreme Court has clarified that the power of the State to conduct the centralized State admission process includes the power to conduct the State centralized counselling.
11. In view of the aforesaid Constitution Bench judgment's of the Supreme Court and the admitted provisions of the rules, it is clear that admissions, whether in Government or private medical colleges, have to be made only through the centralized test and a 8 W.P No.12561/2017 & Bunch centralized counselling to be conducted by the State and that the private colleges have no power or authority to grant admissions on their own.
12. The facts of the case also indicate that the two private petitioners namely; Shivani Sahu and Kanchan Rai had obtained only 168 and 165 marks respectively (57.5 percentile and 56.6 percentile) which was much below the last OBC candidate granted admission through centralized counselling in the petitioner/college i.e. the Sukh Sagar Medical College and Hospital, Jabalpur, namely Ankita Singh who had obtained 311 marks and that because of the fact that these two petitioners were not meritorious candidates, they had not been called for counselling at the State level, nor had they been granted admission at the State level in the M.B.B.S. Course though the petitioner Kanchan Rai had been called for counselling for the BDS course and had been allotted a seat in Bhabha College of Dental Science, Bhopal, which admission she had abandoned.
13. In view of the aforesaid admitted facts and circumstances and the law laid down by the Supreme Court, it is evident that the admissions granted to the two private petitioners are contrary to law and illegal and 9 W.P No.12561/2017 & Bunch that the petitioner/college has committed an illegality in granting admissions at its own level to the two private petitioners inspite of the fact they did not participate in the State level centralized counselling and that their names were not included in the list of allotted students forwarded and sent by the DME to the college and to the MCI.
14. In view of the aforesaid undisputed and admitted facts, it is apparent that the impugned order passed by the MCI dated 9.6.2017 has been passed on proper appreciation of the facts and law and is also in consonance with the law laid down by the Supreme Court in the cases of Modern Dental College and Research Centre (supra) and Jainarayan Chouksey (supra) and, therefore, does not call for any interference by this Court as the same is in accordance with law and the provisions of the Rules and Regulations governing admissions.
15. As a result of the aforesaid discussion, while all the three petitions filed by the petitioners challenging the order dated 9.6.2017 passed by the MCI are dismissed, however in view of and in terms of the directions issued by this Court in the case of Subha Mishra and others 10 W.P No.12561/2017 & Bunch vs. State of M.P. and others, 2008 (3) MPLJ 282, it is observed that the two private petitioners shall be entitled to claim refund of the entire fees deposited by them alongwith interest from the petitioner/college Sukh Sagar Medical College and Hospital, Jabalpur. However, in view of the facts and circumstances of the case which indicate that all the three petitioners i.e. the students as well as the College were aware of the Rules and were also aware of the fact that no admission at the college level could be granted or obtained and are equally at fault and responsible for the situation that has cropped up therefore, there shall be no order as to the cost or compensation against either of them.
16. The petitions, filed by the petitioners, are accordingly dismissed.
(R. S. JHA) (NANDITA DUBEY) JUDGE JUDGE mms/- Digitally signed by MONSI M SIMON Date: 2018.02.14 12:36:47 +05'30'